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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-10-31 Daily Xml
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Bills

Criminal Law Consolidation (Criminal Organisations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2017.)

The Hon. S.G. WADE (15:33): I rise to speak on the Criminal Law Consolidation (Criminal Organisations) Amendment Bill 2017 and I do so as lead speaker for the Liberal team. Over the last 10 years, parliament has taken a series of steps and enacted a number of laws to curb the activities of criminal organisations in South Australia. The Serious and Organised Crime (Control) Act 2008 empowered a court to declare an organisation to be a criminal organisation in order to restrict their criminal activity.

In 2015, serious and organised crime laws were passed that prohibited people from associating with members of criminal organisations. Ten groups have been declared criminal organisations under that act. These criminal organisations have been defined in three ways: firstly, three or more persons meeting, with at least one of their purposes being to plan and engage in serious criminal activity, and their association representing an unacceptable risk; secondly, a declared organisation, as set out above, declared by a court; and, thirdly, an entity declared by parliament, as above, with powers to amend by regulation.

Under the current act, however, a defendant may prove that the criminal organisation with which they are allegedly associated is not an organisation that engages or conspires to engage in criminal activity. This defence puts the onus on the prosecution. The prosecution is forced to establish before a court that the organisation in question is in fact a criminal organisation. The Law Society captures this predicament in a letter that I now quote:

Under the act it is presently a prima facie defence to each of the above offences for the defendant to prove on the balance of probabilities that the organisation does not have a criminal purpose. If the defendant establishes that prima facie position, then for a successful prosecution the onus turns to the prosecution to prove on all of the evidence, including that adduced by the prosecution, that the organisation has as one of its purposes the purpose of engaging in or conspiring to engage in criminal activity.

This defence has been used by defendants previously, and it is a defence that this bill seeks to remove. The government asserts that the prosecution should not have to prove criminal purpose of an organisation that has already been declared by parliament to be a criminal organisation. Having considered the views of stakeholders, the parliamentary Liberal Party has decided to support this bill.

It has now been more than two years since the parliament declared the 10 criminal organisations. Our party is not aware of any assertion that these organisations have been mischaracterised. In these circumstances it is the view of the party that it is neither necessary nor appropriate for the prosecution to have to rebut beyond reasonable doubt a defence which the defendant merely needs to establish on the balance of probabilities. The burden of proof relates not to the action of individual defendants but to the nature of the organisation with which they are associated.

The Liberal Party respects legal rights. We have shown that in a whole series of bills before the parliament over the last 10 years. This not an area of black and white. We appreciate people of shared values and good faith can come to different conclusions. On this occasion we have determined to support the government's bill.

The Hon. A.L. McLACHLAN (15:37): I rise to speak to the Criminal Law Consolidation (Criminal Organisations) Amendment Bill. I speak in my personal capacity. I have elected to vote on this bill as an individual member of the council. I am exercising my right as a member of the Liberal Party to vote in accordance with my conscience. I oppose the passing of this bill. I voted against the original bill, which is now law.

The relevant sections of the act are offensive to all those who value the rule of law and the doctrine of the separation of powers. I have revisited my words to the council in 2015, when we last debated this law. My views on these laws remain unchanged. The enactment of these laws in 2015 was, and remains, in my view, a blight on our democracy in this state. This bill now before the chamber does not attempt to remedy any of the deficiencies in the existing law. Rather, the tabling of this bill insidiously seeks to make the law even more oppressive. I cannot in good conscience abide by this.

The bill seeks to remove the defences that an accused individual can rely on when charged as being a member of a criminal organisation and either gathering with two or more like others, entering a prescribed place or recruiting another person to the criminal organisation. We must remember that the act imposes restrictions on individual liberties, followed by punishment in situations where there is no need for prosecution or conviction for any crime, but rather on the basis of causing future harm. It has been described in various academic papers as pre-crime or future law.

Prejudice, assumptions and perceptions, rather than independently assessed facts, are the corrosive foundation that underpins the operative act. The defence in the act that will no longer be available if this bill becomes law is that the accused will be acquitted if they can prove that the criminal organisation in which they are alleged to be participating is not engaging in or conspiring to engage in criminal activity.

As certain criminal organisations were declared by the parliament in 2015, the defence was included in the event that the organisation ceased certain activities. The government of the day is under no legal obligation to revoke the declaration once it has been made, although given the circumstances of the declaration, it is my view there is a moral obligation to do so.

The government is also seeking to remove the defence for individuals accused of being in a criminal organisation which has not been declared 'criminal' by this parliament. This is and of itself a clear indication that the government is not concerned with justice. In essence, the government's argument is that the defences make it too difficult for the prosecution to prove an offence has been committed or, as it has been expressed in the minister's second reading, removal of the defences 'will improve the practical workability' of the law. This is cold and heartless mechanical language to describe the unnecessary cutting away of the rights of the individual to ease the burden of the police from having to adduce significant evidence of wrongdoing or, as the Attorney-General in the other place has seductively expressed it, are we trying to help declared criminal organisation members escape prosecution or not?

I refute in the strongest terms the validity of this argument to justify the bill. It is an argument without moral foundation. How do we know these individuals are so dangerous? We rely on untested assertions of an instrument of the state, the police. Hardly an organisation that can be seen as an independent arbiter. Unlike a court, the police are not bound to be open and accountable. In other words, we are not relying on an independent judicial officer to make a determination; we are relying on the police. We are treating their senior officers as thaumaturges. This is unfair on our citizens, and unfair on our police force. It drags our police into a debate and puts at risk their standing in our community.

The premise utilised by the Attorney-General is an evil seed that asserts that certain individuals should not have the protection of the law: that these individuals are so dangerous that any means can be justified to suppress them. This bill is seeking to diminish longstanding and important protections of the criminal law. Individual rights are being curtailed for a perceived improvement in community safety. I argue that the perceived danger has been inflamed by populist rhetoric emanating from government members. The government's logic is one that finds favour with authoritarian regimes: create an existential threat and argue that the rights of certain classes of individuals must be curbed for the benefit of the whole. In other words, the end justifies the means. But the reverse is true: the rights of every individual are to the benefit of the whole community. Individual rights ensure that all are safe from capricious acts of the state.

In my view, the end rarely justifies the means. In a democracy that values the rule of law, it is for the courts to decide guilt upon the prosecution proving their case beyond reasonable doubt. It is not acceptable for a government to simply say it is having some difficulties making the case against certain individuals so it will change the law to make it easier to launch prosecutions. If you follow this train of logic to its natural destination, then over time the government will continually lower the burden of proof as an exercise in seeking efficiencies until they can simply imprison citizens on a whim. This path is the wide one, the easy one, and the lazy one. It is a cold embrace with those such as the police that ask us to trust their judgement while they are able to operate in an opaque environment.

It is not right that we give more power to the state to oppress our citizens on the unholy basis of administrative convenience. We must remember that the organisations that are being targeted have been declared by parliament based on the assertions of the police, who relied on their criminal intelligence. Parliament acted in the role of a court and legislated for certain organisations to be declared as criminal. No evidence was tendered, no burden of proof applied. Rather, the parliament took an unjustified leap of faith and relied on the police to nominate the organisations. No evidence was tabled in this chamber.

Criminal intelligence should only be relied upon to inform police operations. It is not evidence and should never be used to determine fact. At best, criminal intelligence is a collection of loose observations and gossip. It is not truth. It has not been tested in an open forum against a burden of proof. The Attorney-General in the other place, during the debate on this bill, attempted to draw parallels with the federal government initiatives in relation to terrorist organisations in an effort to justify the passage of the bill before us.

I strongly reject the Attorney-General's assertion that this bill can be justified because the same type of laws are being applied to terrorists. A terrorist seeks to attack the very existence of the state. This is a long way from criminal organisations that seek to enrich themselves. What parliament is being asked to do in passing this bill is to equate terrorism with the activities of some motorcycle clubs and therefore turn a blind eye to taking away the right of individuals to have a fair trial when they have been accused of a crime.

There is no justification for demonising certain motorcycle clubs to the same extent as international terrorist organisations. This is reckless and rank populist rhetoric designed to provide an unprincipled and deceitful justification for the erosion of longstanding principles of criminal law. I do not accept that the level of perceived threat justifies the destruction of individual liberties, the breach of the doctrine of the separation of powers and the rejection of key tenets of the rule of law.

As one commentator has phrased it about similar types of laws, the criminal law is increasingly becoming the law of the ruler without proper consideration of the requirements of the just rule of law in a democracy. The police have indicated that these laws have had some positive impact. They have also indicated that they never expected the laws to completely remove criminal activity in certain clubs. I understand that there are other strategies that can be applied to curtailing criminal activity in some clubs. I see no reason why these could not have been attempted instead of adopting such oppressive legislative measures.

These laws were adopted from the state of Queensland, including the defences, which the government now wishes to remove. Yet, the Queensland government is now moving away from such laws and investigating other strategies. Despite this, we foolishly persevere with an approach of penal severity. At the same time, drugs continue to spill onto our streets to such an extent that we need a dedicated ice task force in our state.

I suggest that there are better, more intelligent and alternative strategies to address criminal activity. I seek an intelligent approach to stopping organised crime in this state. Like all in this chamber, I want to protect our citizens from the impact of crime. I renew my calls for an independent body to collate and assess crime statistics to inject some rationality into the debate on the most appropriate responses to criminal activity.

We are all on our individual journeys in this place. When I took my first steps in the law, I had a great respect for and trust in the parliament. I did not find favour in a bill of rights. I did not think such an expression of individual rights was necessary in a democracy such as ours. I believed that the esteemed members of parliament would innately understand the importance of the rights of the individual and that the parliament must always exercise restraint when empowering the executive in its bureaucracy, including and especially the police.

They were values shared by the major parties and espoused by reforming premiers such as the Hon. Steele Hall and the late Hon. Don Dunstan. We have moved far away from measured legislative responses to the extreme. This is fuelled by an unhealthy public debate about the need to be tough on crime rather than seeking intelligent responses to arresting criminal activity. This bill and the relevant sections of the act it amends are representative of an ever-increasing trend towards punitive laws designed to play upon citizens' fear of crime against a backdrop of ill-informed populist commentary.

I am now of the view that the only solution to the malaise in our body politic is a bill of rights. A framework in the form of a grand social compact is needed to guide our community discussion and parliamentary debates. This is my only solution at present—to create a means by which our community can resist the very worst of legislative excesses as we see here before us with this bill. I oppose the bill.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (15:48): I thank honourable members for their contributions and their indication of willingness to deal with this bill today. I understand that there may be a question during the committee stage from at least one member, but with that, I again thank honourable members for their contributions and look forward to the speedy passage of this bill through the committee stage momentarily.

The council divided on the second reading:

Ayes 17

Noes 4

Majority 13

AYES
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Gago, G.E. Gazzola, J.M. Hanson, J.E.
Hood, D.G.E. Hunter, I.K. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Maher, K.J. (teller)
Malinauskas, P. Ngo, T.T. Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES
Franks, T.A. McLachlan, A.L. Parnell, M.C. (teller)
Vincent, K.L.

Second reading thus carried.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: The amendments themselves are technically quite simple, but I would like to get onto the Hansard that if the amendments are successful—and obviously they are going to be—and the defences are removed from the body of the act, what are now the elements of the offence that need to be proved by the prosecution?

The Hon. K.J. MAHER: So if this bill is successful, what are the elements of the offences?

The Hon. A.L. McLACHLAN: Yes. If we go to the fact that the bill is passed and the defences have been removed, what are the things that need to be proved in the absence of the defences? In the government briefings—and, I think, the second reading—it talked about the fact that the elements did change because the defences existed.

The Hon. K.J. MAHER: My advice is that if this bill passes the elements of the offence under section 83GC remain the same. I am advised that the elements for the prosecution to prove are: (1) that the accused person is a participant in a criminal organisation; (2) that the accused person was knowingly present in a public place with two or more other persons; and (3) that those other persons are participants in a criminal organisation.

The Hon. A.L. McLACHLAN: I thank the minister for his answer. In some of the information provided to me, because the defences were in existence there was additional material that I think the prosecution had to prepare for to anticipate the defence. I would just like to get that on the Hansard, the impact of the defences, technically, on the prosecution.

The Hon. K.J. MAHER: I think I understand the honourable member's question. While I read out the elements that I am advised the prosecution would need to prove, the follow-up question from the honourable member is: what changes in terms of the defence if this act passes? I am advised that ordinarily in the defence (as I think the honourable member alluded to) the prosecution would effectively have to disprove something, that the proposition that would have had to have been disproved is that the criminal organisation does not have a criminal purpose.

That would include evidence about the rules of the organisation, including minutes of a meeting, as well as proof of general operations and activities of the organisation. This evidence would need to adequately reflect the purpose of the organisation not just at the time of the relevant declaration but also at the time of the relevant offending.

Clause passed.

Remaining clauses (2 to 5), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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